If two extra Delaware school board members show up at a board committee meeting and a quorum is suddenly present, do they have to cancel the meeting?

Official title

21-IB35 12/17/2021 FOIA Opinion Letter to Jose Matthews and Adriana Leela Bohm, Ph.D. re: FOIA Complaint Concerning the Red Clay Consolidated School District Board of Education

Plain-English summary

The Red Clay Consolidated School District Board of Education has seven members. Four constitute a quorum of the full Board. The Board Policy Review Committee, a standing committee, has three Board members plus the Deputy Superintendent and several teachers' union representatives. Three Board members on the Committee plus two non-Committee Board members would total five Board members, which is more than the four-member quorum.

On October 27, 2021, the Committee scheduled a virtual public meeting. The notice and agenda said it was open to the public and provided for public comment. Board members Jose Matthews and Adriana Leela Bohm attended virtually. At the start, when the Committee Chair (the Deputy Superintendent) realized that two non-Committee Board members were present, the Committee adjourned the meeting because a quorum of the full Board was now simultaneously present, and the meeting had not been publicly noticed as a full Board meeting.

Matthews and Bohm filed a FOIA petition. They contended (1) the Committee's adjournment was improper, (2) the Board's failure to post committee meeting minutes online violated FOIA, (3) the Board's omission of certain discussions in committee minutes violated FOIA, and (4) committee meetings are not recorded.

The Board's response, with the Committee Chair's affidavit, explained that the adjournment was a precaution against improperly conducting a Board meeting that had not been noticed.

The AG ruled for the Board on the substance, but with a clarifying note. Delaware FOIA defines a "meeting" as "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." The mere physical (or virtual) presence of a quorum is not enough; the quorum must gather "for the purpose of discussing or taking action on public business." Matthews and Bohm intended to silently observe the Committee meeting as members of the public. Their silent presence would not have transformed the Committee meeting into a full Board meeting. The Committee's adjournment was a cautious choice but, in the AG's words, "FOIA does not mandate the Committee's immediate cancellation upon the mere presence of a quorum."

On the other claims:

• FOIA does not require audio recordings of meetings. The Board said 14 Del. C. § 208 requires digital recordings of its own public meetings. The AG did not decide compliance with that separate statute, because it is "not within the purview of our authority to determine whether a public body properly adhered to a statute other than FOIA."
• FOIA does not require the Board to post its meeting minutes online.
• The Board said the petition did not identify which meeting minutes were missing from the website. The petition also suggested some committee minutes omitted discussions about the committees’ purview; the AG said those allegations were too unspecific to review. Its footnote explains that minutes must record members present and, by individual, each vote and action agreed upon.

The Board voluntarily maintains committee meeting minutes on its website and offered to fix any missing minutes; the AG encouraged it to continue this practice.

What this means for you

For Delaware school boards and other multi-tiered public bodies. The opinion holds that the inadvertent presence of a quorum of the parent Board at a committee meeting does not, by itself, convert the committee meeting into a Board meeting. Because a "meeting" requires a quorum gathered "for the purpose of discussing or taking action on public business," and the two non-committee members were present only to silently observe as members of the public, FOIA did not require the committee to adjourn. The adjournment was permissible but not mandated.

For Delaware school boards and the recording question. The opinion says FOIA does not require audio recordings of meetings. The Board cited 14 Del. C. § 208 concerning digital recordings of its own public meetings. The AG declined to decide compliance with that separate statute in a FOIA petition.

For citizens interested in committee-level transparency. The opinion holds that FOIA does not require the Board to post its meeting minutes online. The Board voluntarily maintains committee minutes on its website and offered to correct any omissions, and the AG encouraged it to continue that practice.

For Board members deciding whether to attend another committee's meeting. The opinion's reasoning turns on purpose: the two members' silent observation did not make the gathering a "meeting" of the Board, because the definition requires a quorum to gather to discuss or act on public business. The opinion does not address what would follow if non-committee members participated in the committee's discussion rather than observing.

Common questions

What's a "meeting" under Delaware FOIA?
The opinion quotes the definition: "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." Both elements matter, a quorum and the purpose of discussing or acting on public business. Because the two extra members were present only to observe, that purpose was missing.

Why did the Committee adjourn?
The Committee Chair's affidavit explained that the committee adjourned because five of the seven Board members were present at once, and the chair feared it was improperly holding a Board meeting that had not been publicly noticed. The AG found that caution permissible, while holding FOIA did not require the cancellation.

Does 14 Del. C. § 208 require school boards to record committee meetings? The Board said § 208 requires digital recordings of its own public meetings. The AG did not decide whether § 208 covers committee meetings; its FOIA opinion addresses only FOIA compliance.

What about the missing-minutes claim?
The Board said the petition did not specify which minutes were missing online and identified minutes that were posted or would be posted after approval. The AG found the separate claim that some minutes omitted committee discussions too unspecific to review. It noted that minutes must record members present and, by individual, each vote and action agreed upon, and encouraged timely, complete website postings.

Background and statutory framework

Delaware FOIA defines "meeting" as the gathering of a quorum for the purpose of discussing or taking action on public business. The opinion treats that two-part definition as the controlling rule: a quorum alone is not a meeting unless it gathers for that purpose.

The Board carried the burden of proof to demonstrate its compliance with FOIA. The opinion also holds that FOIA does not require audio recordings of meetings and does not require the Board to post its minutes online.

Under 29 Del. C. § 10005(e), the AG's role on a petition is to determine whether a FOIA violation has occurred. The opinion says it is "not within the purview of our authority to determine whether a public body properly adhered to a statute other than FOIA," so it did not decide compliance with the separate recording statute cited by the Board.

The "purpose" element of the meeting definition is the key to the silent-observer point. The silent presence of two extra Board members did not constitute a gathering "for the purpose of discussing or taking action on public business" because the two members' purpose was to observe, not to deliberate.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 29 Del. C. § 10005(e): petition to the Attorney General
• 29 Del. C. § 10005(c): public body’s burden of proof
• 29 Del. C. § 10002(j): definition of a meeting
• 29 Del. C. § 10004(f): minutes provision cited for online posting
• 14 Del. C. § 208: recording provision cited by the Board; compliance not decided

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/12/17/21-ib35-12-17-2021-foia-opinion-letter-to-jose-matthews-and-adriana-leela-bohm-ph-d-re-foia-complaint-concerning-the-red-clay-consolidated-school-district-board-of-education/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/12/Attorney-General-Opinion-No.-21-IB35.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY
FAX: (302) 577-2496
KATHLEEN JENNINGS 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE Attorney General Opinion No. 21-IB35

December 17, 2021

VIA EMAIL

Jose Matthews
Red Clay Consolidated School District Board Member
[email protected]

Adriana Leela Bohm, Ph.D.
Red Clay Consolidated School District Board Member
[email protected]

RE: FOIA Petition Regarding the Red Clay Consolidated School District Board of Education

Dear Board Members Matthews and Bohm:

We write in response to your correspondence alleging that the Board of Education of the Red Clay Consolidated School District (“Board”) violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA’s open meeting requirements has occurred. As set forth below, we conclude that the Board has not violated FOIA as alleged.

BACKGROUND

A standing committee of the Board, the Board Policy Review Committee (“Committee”), scheduled a virtual public meeting for October 27, 2021. The meeting notice and agenda indicated the meeting was open to the public and provided for a public comment period. You both attended the meeting virtually, but at the outset of the meeting, upon learning of your presence, the Committee members adjourned the meeting because a quorum of the full Board was suddenly, unexpectedly present and the meeting notice and agenda did not provide public notice that a full Board meeting would take place. The Petition alleges that the Committee members decided to reschedule the meeting for a later date. This Petition from you, the two Board members not on the Committee, followed.

The Petition questions whether the Committee’s actions at this meeting complied with FOIA, and whether the Board’s failure to post committee meeting minutes online and the Board’s omission of certain discussions that pertain to the purview of the Board committees were proper. The Petition also alleges that the Board’s committee meetings are not recorded. The Petition asks this Office to determine whether these omissions impede the public’s rights under FOIA. 1

The Board, through its counsel, submitted a response to your Petition (“Response”). The Board included the affidavit of the Committee Chair, the District’s Deputy Superintendent. The Chair attests that the Board consists of seven members, and four members constitute a quorum. The Committee consists of three members of the Board, the Deputy Superintendent, and several teachers’ union representatives. At the October 27, 2021 meeting of the Committee, the Chair attests that the three Board committee members were in attendance and you two Board members attended the Committee meeting as members of the public. Because five members of the seven- member Board were present at the Committee meeting simultaneously, the Committee immediately adjourned the Committee meeting, fearing it was improperly holding a Board meeting that had not been publicly noticed as such, because a quorum of Board members were now present in the Committee meeting at the same time.

With regard to your allegations of the Board’s failure to record its committee meetings, the Board maintains that there is no requirement in FOIA for the committee meetings to be recorded; instead, another statute, 14 Del. C. § 208, only requires the Board to digitally record its own public meetings. Regarding your allegation of missing minutes, the Board states that the Petition does not specify which meeting minutes are missing from the website, but the November 9, 2021 Community Financial Review Committee meeting minutes will be posted after they are approved at the next meeting; the October 26, 2021 Diversity Committee meeting minutes and the October 28, 2021 Student Code of Conduct Committee meeting minutes have already been posted. Copies of those minutes were attached to the Board’s Response.

DISCUSSION

The Board has the burden of proof to demonstrate its compliance with FOIA. 2 A meeting is defined as “the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business.” 3 The Board consists of seven

1
As our Office is limited to determining whether a public body violated FOIA, this Opinion is limited to addressing the FOIA allegations and does not address the hypotheticals posed in this Petition. See 29 Del. C. § 10005(e). 2 29 Del. C. § 10005(c); see also Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692 (Del. Dec. 6, 2021).
3
29 Del. C. § 10002(j).

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members, and four members constitute a quorum. 4 In this case, two Board members who were not Committee members attended a Committee meeting, inadvertently resulting in the presence of a quorum of the Board being present at the Committee meeting. The Committee immediately adjourned the meeting to avoid improperly conducting a Board meeting without public notice. Although cancelling a meeting for this reason does not run afoul of FOIA, FOIA does not mandate the Committee’s immediate cancellation upon the mere presence of a quorum, as the silent observation of two Board members in the audience would not transform this Committee meeting into a Board meeting. A “meeting” under FOIA requires a quorum of members to gather for the purpose of discussing or taking action on public business, but the two members in this case intended to silently observe the meeting as members of the public.

We likewise find no violation of FOIA with respect to the remaining issues in the Petition. 5 FOIA does not require audio recordings of meetings, and to the extent another statutory requirement exists, it is not within the purview of our authority to determine whether a public body properly adhered to a statute other than FOIA. 6 In addition, the Board is not mandated by FOIA to post its meeting minutes online. 7 As the Board voluntarily maintains its committee meeting minutes on its website and offered to rectify the omission of any committee meeting minutes, we encourage the Board to do so and to continue to make timely and complete postings of those minutes on its website.

4
Response, Affidavit of Deputy Superintendent, Chair of Board Policy Review Committee.
5
While the Petition suggests that committee meeting minutes may be incomplete due to the omission of certain discussions about the purview of the committees, the allegations were insufficiently specific to allow for review. However, we note that meeting minutes are required to include a record of the members present, and a record, by individual, of each vote taken and action agreed upon by the members. 6 See, e.g., Del. Op. Att’y Gen. 21-IB11, 2021 WL 2144533, at 2 (May 12, 2021); Del.
Op. Att’y Gen. 18-IB50, 2018 WL 6015765, at 2 (Oct. 12, 2018) (finding that this Office has “no authority under FOIA to direct [the public body] with regard to this Office’s interpretation of any other Delaware statute”); Del. Op. Att’y Gen. 96-IB28, 1996 WL 517455, at *2 (Aug. 8, 1996) (“To the extent you allege that Sussex County has not complied with the requirements of
[9 Del. C. § 6921], that matter is beyond the jurisdiction of this office and is not addressed here.”). 7 29 Del. C. § 10004(f).
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CONCLUSION

For the reasons set forth above, we conclude that the Board has not violated FOIA as alleged.

Very truly yours,

/s/ Dorey L. Cole
_________
Dorey L. Cole
Deputy Attorney General

APPROVED BY:

/s/ Aaron R. Goldstein
__________
Aaron R. Goldstein
State Solicitor

cc: Michael P. Stafford, Attorney for the Red Clay Consolidated School District Board of Education

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